PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: December 4, 2003
         DOCKET NUMBER: AR2003089239

         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Allen L. Raub		Member
Mr. Kenneth W. Lapin		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his general (under honorable conditions) discharge be upgraded to honorable.

3. The applicant states, in effect, that he was discharged for reasons reflecting character and behavior disorder when in fact he suffered from the symptoms of acute mononucleosis. He states that for 32 years he has lived with a burden and an unfair situation.

4. The applicant further states that in 1971, previous to his discharge from the Army, he complained of being over-tired, having a loss of energy and wanting to sleep but was ignored and passed off as looking for "excuses." His colonel and sergeant accused him of being lazy, disrespectful, and other things of this nature; but, 2 weeks and 5 days after his discharge, he was hospitalized and quarantined with acute mononucleosis – close to losing his life. He concludes by stating that, in his opinion, the Army was negligent in hearing his complaint and instead discharged him with an illness and one that could have cost him his life.

5. In support of his application, the applicant submitted a memorandum from a department coordinator and a supervisor where he last worked in March 2003. These memoranda depict the applicant as a conscientious and supportive worker whose relationship with his fellow employees was outstanding.

6. The applicant also submits a Form 103-Rev (Admission Diagnosis) from Saint Joseph's Hospital in Loraine, Ohio, which was prepared when he was diagnosed and admitted to the hospital with acute mononucleosis on 30 June 1971.

7. The applicant's military records show that the applicant enlisted in the Regular Army for a period of 2 years on 16 March 1970. He successfully completed basic combat training at Fort Campbell, Kentucky. He was assigned to Fort Polk, Louisiana, to undergo advanced individual training (AIT) in the military occupation specialty (MOS) 36K, Wireman. The applicant was then reassigned to Fort Gordon, Georgia, to undergo training for award of the MOS, 36C, Lineman.

8. On completion of all training, the applicant was assigned overseas to Germany. He was assigned to the 26th Signal Battalion on 3 September 1970. He was promoted, on 15 October 1970, just over a month after his arrival and assignment to the unit, to the rank and pay grade, Private First Class, E-3.

9. On 2 November 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his place of duty, guard duty, on 24 October 1970. The punishment imposed was 14 days extra duty and 14 days restriction to the unit area, both punishments to run concurrently. The applicant did not appeal the punishment.
10. On 4 January 1971, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for absenting himself from his place of duty, guard duty, on 24 December 1970. The punishment imposed was a reduction in rank and pay grade to Private, E-2, and forfeiture of $30.00 for one month. The applicant did not appeal the punishment.

11. On 4 March 1971, the applicant's unit commander recommended that he [the applicant] be barred from reenlistment. In his recommendation the commander stated that the applicant was one of the poorest soldiers that he had ever encountered and added, "He cannot adapt to military life and is a discredit to his unit and the US Army." The bar to reenlistment was approved on 26 April 1971.

12. On 10 March 1971, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty, work detail on 3 May 1971. The punishment imposed was a forfeiture of $22.00 per month for one month. The applicant did not appeal the imposed punishment.

13. On 10 March 1971, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for going from his appointed place of duty, work detail, in the basement of building #9, on 2 March 1971, without authority. As his punishment, he was restricted and required to perform extra duty for fourteen days. These punishments were to run concurrently. The applicant did not appeal the imposed punishment.

14. A Standard Form (SF) 600, Chronological Record of Medical Care, indicates that on 19 March 1971, the applicant was seen and diagnosed by the Chief, Department of Psychiatry, US Army Hospital (USAH), Bad Cannstatt, as having an inadequate personality. The applicant was cleared psychiatrically for any administrative action deemed necessary by command. Expeditious separation from the service under the provisions of Army Regulation (AR) 635-212 was recommended.

15. On 23 April 1971, the applicant's commanding officer recommended that the applicant be discharged from the Army prior to the expiration of his current period of service under the provisions of AR 635-212, paragraph 6b(2), by reason of unsuitability. Elimination was recommended because of character and behavior disorders displayed by his apathetic approach to duties. The commander added that the applicant's lazy, uncooperative, and undependable performance of duties had continually placed him in conflict with his supervisors and his co-workers. The applicant was of no value to the unit or the Army as even the smallest of tasks required maximum supervision to get them accomplished.

16. The commander formally counseled the applicant on 14 and 20 January, 10 February, and 21 April 1971 according to the recommendation for discharge for unsuitability action.
17. The applicant's conduct and efficiency rating were rated as "excellent" from 23 March 1970 until 11 October 1970. From 12 October 1970, to the date that the commander submitted his recommendation for the applicant's separation, 23 April 1971, the applicant's conduct and efficiency were rated "unsatisfactory."

18. On 27 April 1971, the applicant was given a mental status examination at the Heilbronn Health Clinic. A DA Form 2496-1 (Mental Status Examination) was completed to record the results of this examination. In this report, the applicant's behavior was normal, he was fully alert and fully oriented, his mood was level, his thinking process was clear, his thinking content was normal, and his memory was good.

19. The applicant was found to have no significant mental disease and was found to be mentally responsible. The applicant was found to be able to distinguish right from wrong and able to adhere to the right. He had the mental capacity to understand and participate in board proceedings. He was deemed to meet retention standards of AR 40-501.

20. An AE Form 3087 (Report of Psychiatric Evaluation) was also completed. The applicant was diagnosed as having an inadequate personality. The mental status is as follows: "Oriented in three spheres, the subject displayed no evidence of psychosis or organic disease. He said he is bothered with 'everything that deals with the Army' and said he does 'not like the people running the Army.' Of borderline defective intelligence, he gets 'bored' – a problem which he appears to have encountered in school. It was noted he demonstrated 'no responsibility for carrying out directions' after missing appointments at the Urology Clinic, USAH Bad Cannstatt. He will agree to discharge from the Army 'if they give it to me.' Potential for retention is very poor."

21. The findings and conclusion in the above referenced form states, "The above two statements apply. The above diagnosis constitutes a character and behavior disorder not amenable to forms of rehabilitative measures such as transfer, retraining, or psychiatric treatment."

22. The applicant was cleared psychiatrically for any administrative action deemed necessary by command. Expeditious separation from the service under the provisions of AR 635-212 was recommended.

23. On 27 April 1971, the applicant underwent a separation physical examination. On the SF 89, Report of Medical History, the applicant annotated the form that he was in, "Good Health." The applicant reported that he had been treated for Pneumonia on 10 April 1970, while he was at Fort Campbell, Kentucky, and in addition, reported only having had the mumps and hay fever in the past.
24. On the SF 88, prepared on the same date, in Item 73 (Notes), the applicant entered in his own handwriting, "Good Health." His signature appears beneath this entry. The medical examining officer made no remarks other than that he [the applicant] was, "qualified for AR 635-212 Separation."

25. On 3 May 1971, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty, work call formation, on 3 May 1971. The punishment imposed was a forfeiture of $22.00 pay per month for one month. The applicant did not appeal the punishment.

26. On 18 May 1971, the applicant was advised by counsel that proceedings to discharge him from the Army, under the provisions of AR 635-212, for unsuitability, were being contemplated. The applicant acknowledged the contemplated action on the same date and waived consideration of his case by and a personal appearance before a board of officers. The applicant elected not to make a statement but acknowledged that he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued him. The applicant also understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

27. The applicant's chain of command was unanimous in recommending approval of the action and in recommending that the applicant be discharged with a general (under honorable conditions) discharge.

28. On 20 May 1971, the appropriate authority, a colonel, approved the applicant's discharge and directed that the applicant be discharged from the service for unsuitability under the provisions of AR 635-212, paragraph 6b(2) and that a general (under honorable conditions) discharge be issued.

29. The applicant was discharged on 11 June 1971, with a general discharge, characterized as under honorable conditions, in the rank and pay grade, Private, E-2, after completing 1 year, 2 months, and 26 days creditable active military service.

30. There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

31. AR 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. When separation for unsuitability was warranted, an honorable or general discharge was issued, as determined by the separation authority, based upon the individual's entire record.

32. AR 635-200 was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual’s military record during the current enlistment. Further, any separation for unsuitability, based on a personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrades of discharges based on personality disorders. A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are “clear and demonstrable reasons” why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be “clear and demonstrable reasons” which would justify a less than fully honorable discharge.

33. AR 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he was discharged for a character and behavior disorder when in fact he was suffering from symptoms of acute mononucleosis, and that the Army was negligent in hearing his complaints and discharged him with an illness that could have cost him his life.

2. Contrary to the applicant’s assessment, the evidence of record shows that the applicant was evaluated by Army medical personnel and diagnosed with a personality disorder.

3. Based on the evidence of record, it appears that the Brotzman and Nelson memorandums should be applied to this case and that his discharge should be upgraded to honorable.

4. The evidence of record further shows that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The characterization of the applicant’s discharge was determined by the regulation in effect at the time.

5. The available records support that the applicant was discharged due to a personality disorder. The Board concludes that under current regulation, the applicant’s service would be characterized as fully honorable. Therefore, the Board concludes that it would be proper and just to upgrade the applicant’s general (under honorable conditions) discharge to honorable.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all Department of the Army records related to this case be corrected by:

         a. showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 11 June 1971, with no change in the reason; and
b. issuing the applicant an Honorable Discharge Certificate from the United States Army, dated 11 June 1971, in lieu of the general (under honorable conditions) discharge now held by him.

BOARD VOTE:

__KL___ __AR___ __WTM_ GRANT AS STATED IN ECOMMENDATION

________ ________ ______ GRANT FORMAL HEARING

________ ________ ______ DENY APPLICATION




                  Walter T. Morrison
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089239
SUFFIX
RECON
DATE BOARDED	2003/12/04
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19710611
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2. 396	144.0135
3.
4.
5.
6.